Lex Rex [Law Is King, or The Law & The Prince] (1644)

Samuel Rutherford

Whether or No He Be More Principally a King Who Is a King by Birth, or He Who Is a King by the Free Election and Suffrages of the People

Assert. 1. — Without detaining the reader, I desire liberty to assert that, where God establishes a kingdom by birth, that government. hic et nunc, is best; and because God principally distributes crowns, when God establishes the royal line of David to reign, he is not principally a king who comes nearest and most immediately to the fountain of royalty, which is God’s immediate will; but God established, hic et nunc, for typical reasons (with reverence of the learned) a king by birth.

Assert. 2. — But to speak of them, ex natur a rei, and according to the first mold and pattern of a king by law, a king by election is more principally king (magis univoce et per se) than an hereditary prince.

    (1.) Because in hereditary crowns, the first family being chosen by the free suffrages of the people, for that cause ultimate, the hereditary prince comes to the throne, because his first rather, and in him the whole line of the family, was chosen to the crown, and propter quod unumquodque tale, id ipsum magis tale.
    (2.) The first king ordained by God’s positive law, must be the measure of all kings, and more principally the king than he who is such by derivation. But the first king is a king by election, not by birth, Deut. 17:15, Thou shalt in any wise set him king over thee, whom the Lord thy God shall choose; one from amongst thy brethren shalt thou set over thee.
    (3.) The law says. Surrogatum fruitur privilegiis ejus, in cujus locum surrogatur, he who is substituted in the place of another, enjoys the privileges of him in whose place he succeeds. But the hereditary king has royal privileges from him who is chosen king.. Solomon has the royal privileges of David his father, and is therefore king by birth, because his father David was king by election; and this I say, not because I think sole birth is a just title to the crown, but because it designs him who indeed virtually was chosen, when the first king of the race was chosen.
    (4.) Because there is no dominion of either royalty, or any other way by nature, no more than an eagle is born king of eagles, a lion king of lions; neither is a man by nature born king of men; and, therefore, he who is made king by suffrages of the people, must be more principally king than he who has no tide but the womb of his mother.

Dr Ferne is so far with us, to father royalty upon the people’s free election as on the formal cause, that he says,1 If to design the person and to procure limitation of the power, in the exercise of it, be to give the power, we grant the power is from the people; but (says he) you will have the power originally from themselves, in another sense, for you say, they reserve power to depose and displace the magistrate; sometimes they make the monarchy supreme, and then they divest themselves of all power, and keep none to themselves; but, before established government, they have no politic power whereby they may lay a command on others, but only a natural power of private resistance, which, they cannot use against the magistrate.

Ans. — But to take off those by the way. 1. If the king may choose A. B. an ambassador, and limit him in his power, and say, Do this, and say this to the foreign state you go to, but no more, half a wit will say the ling creates the ambassador, and the ambassador’s power is originally from the king; and we prove the power of the lion is originally from God, and of the sea and the fire is originally from God, because God limits the lion in the exercises of its power, that it shall not devour Daniel, and limits the sea, as Jeremiah says, when as he will have its proud waves to come thither and no farther, and will have the fire to burn those who threw the three children into the fiery furnace, and yet not to burn the three children; for this is as if Dr Ferne said, The power of the king of six degrees, rather than his power of five, is from the people, therefore the power of the king is not from the people; yea, the contrary is true.

2. That the people can make a king supreme, that is, absolute, and so resign nature’s birthright, that is, a power to defend themselves, is not lawful, for if the people have not absolute power to destroy themselves, they cannot resign such a power to their prince.

3. It is false that a community, before they be established with formal rulers, have no politic power; for consider them as men only, and not as associated, they have indeed no politic power: but before magistrates be established, they may convene and associate themselves in a body, and appoint magistrates; and this they cannot do if they had no politic power at all.

4. They have virtually a power to lay on commandments, in that they have power to appoint to themselves rulers, who may lay commandments on others.

5. A community has not formally power to punish themselves, for to punish, is to inflict malum disconveniens natures, an evil contrary to nature; but, in appointing rulers and in agreeing to laws, they consent they shall be punished by another, upon supposition of transgression, as the child willingly going to school submits himself in that to school discipline, if he shall fail against any school law; and by all this it is clear, a king by election is principally a king. Barclay then fails, who says,2 No man denies but succession to a crown by birth is agreeable to nature. It is not against nature, but it is no more natural than for a lion to be born a king of lions.

Obj. — Most of the best divines approve an hereditary monarch, rather than a monarch by election.

Ans. — So do I in some cases. In respect of empire simply, it is not better; in respect of empire now, under man’s fall in sin, I grant it to be better in some respects. So Salust in Jugurth. Natura mortalium imperij avida. Tacitus, Hist. 2. Minore discrimine princeps sumitur, quam queritu, there is less danger to accept of a prince at hand, than to seek one afar off. In a kingdom to be constituted, election is better; in a constituted kingdom, birth seems less evil. In respect of liberty, election is more convenient; in respect of safety and peace, birth is safer and the nearest way to the well. See Bodin, de Rep. lib. 6, c. iv.; Thol. de Rep. lib. 7, c iv.


     1.    Dr Ferne, part 3, sect. 3, p. 14.
     2.    Barcla. cont. Monarchom.. c. 2, p. 56.